Argued: May 10, 2016
from the United States District Court for the Eastern
District of Virginia, at Norfolk. Arenda L. Wright Allen,
District Judge. (2:12-cv-00340-AWA-LRL)
Alan Raphael, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellants.
A. Stevenson, EQUAL JUSTICE INITIATIVE, Montgomery, Alabama,
R. Herring, Attorney General of Virginia, Linda L. Bryant,
Deputy Attorney General, Criminal Justice & Public Safety
Division, Donald E. Jeffrey, III, Senior Assistant Attorney
General, Eugene P. Murphy, Senior Assistant Attorney General,
Katherine Quinlan Adelfio, Assistant Attorney General, Trevor
S. Cox, Deputy Solicitor General, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants.
Jennifer T. Stanton, J.T. STANTON, P.C., Norfolk, Virginia;
Randall S. Susskind, Jennae R. Swiergula, Stephen Chu, EQUAL
JUSTICE INITIATIVE, Montgomery, Alabama, for Appellee.
NIEMEYER and WYNN, Circuit Judges, and Thomas E. JOHNSTON,
United States District Judge for the Southern District of
West Virginia, sitting by designation.
by published opinion. Judge Wynn wrote the opinion, in which
Judge Johnston joined. Judge Niemeyer wrote a dissenting
v. Florida, 560 U.S. 48, 74 (2010), held that "the
Eighth Amendment forbids the sentence of life without
parole" for juvenile offenders convicted of nonhomicide
offenses. Accordingly, the Supreme Court held that States
must provide juvenile nonhomicide offenders sentenced to life
imprisonment with "some meaningful opportunity to obtain
release based on demonstrated maturity and
rehabilitation." Id. at 75.
a decade before the Supreme Court decided Graham,
Respondent, the Commonwealth of Virginia, sentenced
Petitioner Dennis LeBlanc to life imprisonment without parole
for a nonhomicide offense he committed at the age of sixteen.
In light of Graham, Petitioner sought postconviction
relief from his sentence in Virginia state courts. The state
courts denied Petitioner relief, holding that Virginia's
geriatric release program--which was adopted more than
fifteen years before the Supreme Court decided
Graham and will allow Petitioner to seek release
beginning at the age of sixty--provides the "meaningful
opportunity" for release that Graham requires.
of the deference we must accord to state court decisions
denying state prisoners postconviction relief, we nonetheless
conclude that Petitioner's state court adjudication
constituted an unreasonable application of Graham.
Most significantly, Virginia courts unreasonably ignored the
plain language of the procedures governing review of
petitions for geriatric release, which authorize the State
Parole Board to deny geriatric release for any reason,
without considering a juvenile offender's maturity and
rehabilitation. In light of the lack of governing standards,
it was objectively unreasonable for the state courts to
conclude that geriatric release affords Petitioner with the
"meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation"
Graham demands. Id. Accordingly, Petitioner
is entitled to relief from his unconstitutional sentence.
15, 2002, a Virginia state trial court found Petitioner
guilty of rape and abduction. Petitioner committed the
offenses on July 6, 1999, when he was sixteen years old. The
court sentenced Petitioner to two terms of life imprisonment.
Petitioner was ineligible for parole pursuant to Va. Code
Ann. § 53.1-165.1, which abolished parole for
individuals convicted of a felony committed after January 1,
1995. Petitioner did not appeal his conviction or sentence.
2011, Petitioner filed a motion to vacate his sentence in
state trial court. The motion argued that Graham
rendered Petitioner's life sentence invalid. In
opposition, Respondents asserted that, notwithstanding
Virginia's abolition of parole, Petitioner's life
sentence did not violate Graham because Virginia
allows for conditional release of "geriatric prisoners,
" Va. Code Ann. § 53.1-40.01 ("Geriatric
hearing on August 9, 2011, the state trial court orally
denied Petitioner's motion to vacate. In rendering its
decision, the trial court relied on the Supreme Court of
Virginia's decision in Angel v. Commonwealth,
704 S.E.2d 386 (Va. 2011), which held that Geriatric Release
provides juveniles sentenced to life in prison a
"meaningful opportunity for release" and therefore
complies with Graham's parole requirement. J.A.
157. Petitioner appealed the trial court's decision to
the Supreme Court of Virginia, which summarily denied his
petition for appeal.
19, 2012, Petitioner filed a petition for habeas corpus
pursuant to 28 U.S.C. § 2254 in the United States
District Court for the Eastern District of Virginia. A
federal magistrate judge reviewed the petition and
recommended that the district court deny it. LeBlanc v.
Mathena, No. 2:12-cv-340, 2013 WL 10799406, at *1 (E.D.
Va. July 24, 2013). Petitioner filed objections to the
magistrate judge's report. Finding the objections
well-taken, the district court granted Petitioner's
habeas petition, holding that his state court adjudication
was contrary to, and an unreasonable application of,
Graham. LeBlanc v. Mathena, No. 2:12cv340,
2015 WL 4042175, at *9 (E.D. Va. July 1, 2015). In
particular, the district court concluded that Geriatric
Release does not offer juvenile offenders sentenced to life
imprisonment, like Petitioner, the "meaningful
opportunity to obtain release based on demonstrated maturity
and rehabilitation" required by Graham.
Id. at *9, *11-18. The district court further
concluded that Geriatric Release did not comply with
Graham's dictate that state penal systems
reflect the lesser culpability of juvenile offenders,
explaining that Geriatric Release "treats children
worse" than adult offenders. Id. at
*14 (emphasis in original). Accordingly, the district court
remanded Petitioner's case to the state court for
resentencing in accordance with Graham. Id.
filed a timely appeal, and the district court stayed its
judgment pending resolution of that appeal.
Virginia General Assembly established Geriatric Release in
1994--more than 15 years before the Supreme Court decided
Graham--as part of its
"truth-in-sentencing" reform package. J.A. 169. The
primary goal of truth-in-sentencing reform was to close the
gap between prisoners' original sentences and the amount
of time they actually served. Brian J. Ostrom et al.,
Truth-in-Sentencing in Virginia 17-20 (April 5, 2001),
centerpiece of the reform package was the elimination of
parole for all offenders who committed felonies on or after
January 1, 1995. Id.
statutory provision governing Geriatric Release, as amended,
 provides, in its entirety:
Any person serving a sentence imposed upon a conviction for a
felony offense, other than a Class 1 felony, (i) who has
reached the age of sixty-five or older and who has served at
least five years of the sentence imposed or (ii) who has
reached the age of sixty or older and who has served at least
ten years of the sentence imposed may petition the Parole
Board for conditional release. The Parole Board shall
promulgate regulations to implement the provisions of this
Va. Code Ann. § 53.1-40.01. Unlike with other components
of the truth-in-sentencing reform package,  we have identified no evidence in the
contemporaneous legislative record speaking to the General
Assembly's goal in enacting Geriatric Release or
providing guidance regarding the implementation of Geriatric
Virginia Parole Board is responsible for deciding whether to
grant petitions for Geriatric Release. Section 53.1-40.01
directs the Parole Board to promulgate regulations necessary
to implement the statute. Pursuant to that authority, the
Parole Board established administrative procedures governing
implementation of the Geriatric Release provision (the
"Geriatric Release Administrative Procedures").
Geriatric Release Administrative Procedures set forth a
two-stage review process for Geriatric Release petitions. At
the "Initial Review" stage, the Parole Board
reviews a prisoner's petition--which must provide
"compelling reasons for conditional release"--and
the prisoner's "central file and any other pertinent
information." J.A. 287. The Parole Board may deny the
petition at the Initial Review stage based on a majority
vote. Neither the statute nor the Geriatric Release
Administrative Procedures states what constitute
"compelling reasons for conditional release, " nor
does either document require the Parole Board to consider any
particular factors in conducting the Initial Review, nor does
either document set forth any criteria for granting or
denying a prisoner's petition at the Initial Review
Parole Board does not deny a petition at the Initial Review
stage, the petition moves forward to the "Assessment
Review" stage. As part of the Assessment Review, a
Parole Board member or designated staff member interviews the
prisoner. During that interview, the prisoner may present
written and oral statements as well as any written material
bearing on his case for parole. The interviewer then drafts a
written assessment of the prisoner's "suitability
for conditional release" and, based on that assessment,
recommends whether the Parole Board should grant the
petition. J.A. 288. In order to grant Geriatric Release to a
prisoner sentenced to life imprisonment, at least four
members of the five-member Parole Board must vote in favor of
engaging in the Assessment Review, Parole Board members
should consider "[a]ll factors in the parole
consideration process including Board appointments and Victim
Input." Id. The Virginia Parole Board Policy
Manual includes a long list of "decision factors"
to be considered in the parole review process. J.A. 297.
These factors include: public safety, the facts and
circumstances of the offense, the length and type of
sentence, and the proposed release plan. The Parole Board
also should consider certain characteristics of the offender,
including "the individual's history, physical and
mental condition and character, . . . conduct, employment,
education, vocational training, and other developmental
activities during incarceration, " prior criminal
record, behavior while incarcerated, and "changes in
motivation and behavior." J.A. 297-99. Finally, the
Parole Board should consider impressions gained from
interviewing the prisoner as well as information from family
members, victims, and other individuals.
are several key ways in which Geriatric Release differs from
Virginia's parole system, which remains in place for
prisoners who committed their offenses before January 1,
1995. The first--and most obvious--is the age limitation. In
order to seek Geriatric Release, an inmate must be at least
sixty years of age. By contrast, most parole-eligible inmates
serving a life sentence will be considered for parole for the
first time after serving fifteen years of their sentence. Va.
Code Ann. § 53.1-151(C). Other prisoners will be
considered for parole when they serve a certain percentage of
their sentence. Id. § 53.1-151(A). Accordingly,
whereas Petitioner would have been considered for parole
after serving twenty years of his sentence, Petitioner cannot
apply for Geriatric Release until roughly twenty years later.
second difference is that an inmate must actively petition
for Geriatric Release once he or she becomes eligible,
whereas the Parole Board automatically considers, on an
annual basis, whether to release each parole-eligible inmate.
difference is that, unlike with parole, the Parole Board may
deny a petition for Geriatric Release at the Initial Review
stage without considering any of the "decision
factors" enumerated in the Parole Board Policy Manual.
Indeed, unlike the parole system, which has established
criteria that the Parole Board must consider in granting or
denying parole, Geriatric Release affords the Parole Board
unconstrained discretion to deny a petition for Geriatric
Release at the Initial Review stage. Relatedly, in their
petition, prisoners must "identify compelling
reasons" why they should receive Geriatric Release,
notwithstanding that the "compelling reasons"
requirement has no statutory basis and that the Geriatric
Release Administrative Procedures do not provide any guidance
regarding what constitutes a "compelling reason."
J.A. 287. By contrast, there is no requirement that a
parole-eligible inmate demonstrate "compelling
reasons" in order to obtain parole.
the Parole Board or its designee interviews prisoners
undergoing parole review as a matter of course. By contrast,
the Parole Board can deny a petition for Geriatric Release at
the Initial Review stage "on a review of the record,
" without interviewing the inmate. J.A. 287.
notable difference is that four members of the five-member
Parole Board must approve Geriatric Release of inmates
sentenced to life imprisonment. By contrast, only three
members of the Parole Board must approve parole of
review the district court's decision to grant
Petitioner's habeas petition de novo.
Richardson v. Branker, 668 F.3d 128, 138 (4th Cir.
2012). The Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), which accords deference to final
judgments of state courts, circumscribes our review.
Nicolas v. Att'y Gen. of Md., 820 F.3d 124, 129
(4th Cir. 2016). Under AEDPA, a federal court may grant
habeas relief to a state prisoner, like Petitioner, if the
prisoner's state court adjudication "was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States, " 28 U.S.C. § 2254(d)(1), or
"was based on an unreasonable determination of the facts
in light of the evidence presented in the state court
proceeding, " id. § 2254(d)(2).
contend that the Virginia courts' conclusion that
Geriatric Release complies with Graham's parole
requirement amounted to a finding of fact, and therefore that
the standard set forth in 28 U.S.C. § 2254(d)(2)
applies. Federal courts review habeas petitions raising
questions of law or mixed questions of law and fact under
Section 2254(d)(1). Horn v. Quarterman, 508 F.3d
306, 312 (5th Cir. 2007); see also, e.g., Barnes
v. Joyner, 751 F.3d 229, 246-52 (4th Cir. 2014)
(analyzing habeas petition raising mixed question of law and
fact under Section 2254(d)(1)). By contrast, Section
2254(d)(2) applies to questions of historical fact.
Weaver v. Palmateer, 455 F.3d 958, 963 n.6 (9th Cir.
2006); Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir.
2002) ("[T]he special prophylaxis of section 2254(d)(2)
applies only to determinations of basic, primary, or
historical facts." (internal quotation omitted)).
the Virginia courts' evaluation of whether Geriatric
Release complies with Graham's parole
requirement implicates questions of law, and therefore is
subject to review under Section 2254(d)(1). See,
e.g., Moore v. Biter, 725 F.3d 1184, 1191 (9th
Cir. 2013) (holding that a state court decision was contrary
to clearly established law when it held that Graham
did not bar a juvenile nonhomicide offender's sentence
under which he would be eligible for parole in 127 years);
Bunch v. Smith, 685 F.3d 546, 549-50 (6th Cir. 2012)
(analyzing whether 89-year sentence was functional equivalent
of life sentence for purposes of Graham under
Section 2254(d)(1)). Therefore, we must determine whether the
state court's decision was "contrary to, or involved
an unreasonable application of clearly established"
Supreme Court law. 28 U.S.C. § 2254(d)(1).
assessing a state prisoner's habeas claims, we review the
"last reasoned" state court decision. Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991); Grueninger v.
Dir., Va. Dep't of Corrs., 813 F.3d 517, 525 (4th
Cir. 2016). "Unless a state- court opinion adopts or
incorporates the reasoning of a prior opinion, AEDPA
generally requires federal courts to review one state
decision." Wooley v. Rednour, 702 F.3d 411, 421
(7th Cir. 2012) (internal quotation omitted). However,
"[i]f the last reasoned decision adopts or substantially
incorporates the reasoning from a previous state court
decision, we may consider both decisions to fully ascertain
the reasoning of the last decision." Edwards v.
Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (internal
quotation omitted); Brian R. Means, Federal Habeas Manual
§ 3:7 (2016) ("[W]here the last reasoned state
court decision adopts or substantially incorporates the
reasoning from a previous decision, it is acceptable for the
federal court to look at both state court decisions to fully
ascertain the reasoning of the last decision.").
Supreme Court of Virginia summarily affirmed the trial
court's oral denial of Petitioner's motion to vacate.
Accordingly, the trial court decision constitutes the last
reasoned decision for purposes of our analysis.
Nicolas, 820 F.3d at 129. The trial court relied on
Angel's reasoning regarding the Geriatric
Release provision's compliance with Graham's
parole requirement. Accordingly, we must consider both the
trial court's decision and Angel in determining
whether Petitioner's state court adjudication was
"contrary to, or an unreasonable application of"
Graham--the question to which we now turn.
Eighth Amendment, made applicable to the States through the
Fourteenth Amendment, prohibits the infliction of "cruel
and unusual punishments." U.S. Const. amend. VIII;
Roper v. Simmons, 543 U.S. 551, 560 (2005). "To
determine whether a punishment is cruel and unusual, courts
must look beyond historical conceptions to 'the evolving
standards of decency that mark the progress of a maturing
society.'" Graham, 560 U.S. at 58 (quoting
Estelle v. Gamble, 429 U.S. 97, 102 (1976)). The
Eighth Amendment "prohibits not only barbaric
punishments, but also sentences that are disproportionate to
the crime committed." Solem v. Helm, 463 U.S.
277, 284 (1983).
rests on a long line of Supreme Court decisions addressing
the constraints imposed by the Eighth Amendment on the
punishment of juvenile offenders. In Thompson v.
Oklahoma, 487 U.S. 815, 838 (1988), the Supreme Court
held that the Eighth Amendment prohibits the death penalty
for offenders who committed their crimes before the age of
sixteen. The Court grounded its decision on the principle
"that punishment should be directly related to the
personal culpability of the criminal defendant."
Id. at 834 (quoting California v. Brown,
479 U.S. 538, 545 (1987)). "[A]dolescents as a class are
less mature and responsible than adults, " the Court
explained. Id. "Inexperience, less education,
and less intelligence make the teenager less able to evaluate
the consequences of his or her conduct while at the same time
he or she is much more apt to be motivated by mere emotion or
peer pressure than is an adult." Id. at 835.
Accordingly, a juvenile's transgression is "not as
morally reprehensible as that of an adult." Id.
Because juvenile offenders are not as personally culpable as
adult offenders, juvenile offenders should not receive
punishments as severe as those inflicted on adult offenders,
the Court held. Id. at 834.
Roper v. Simmons, the Supreme Court again emphasized
the unique characteristics of youth when it extended
Thompson's bar on the death penalty to all
individuals who committed their offenses before the age of
eighteen. 543 U.S. at 578. Like Thompson, the
Roper Court highlighted juveniles' "lack of
maturity and underdeveloped sense of responsibility" and
propensity for "reckless behavior." Id. at
569 (citations omitted). Roper further noted that
"the character of a juvenile is not as well formed as
that of an adult" and juveniles' "personality
traits are more transitory, less fixed." Id. at
570. As a result, "it is less supportable to conclude
that even a heinous crime committed by a juvenile is evidence
of irretrievably depraved character." Id.
"Indeed, '[t]he relevance of youth as a mitigating
factor derives from the fact that the signature qualities of